‘Poor performance’ not enough to deny unemployment benefits

The Court of Appeals Western District ruled April 28 that a man terminated for “poor performance” at work can’t be denied unemployment benefits.

The ruling in favor of Mark Wayne — who represented himself on appeal — came despite a 2014 state law that tightened the standards for unemployment compensation, making it harder for workers to claim benefits if they were fired for violating an employer’s rule.

Wayne was terminated in 2019 from his job at Estes Express Lines Corporation after he was written up several times for mistakes in loading freight. The company opposed his claim for unemployment benefits, arguing that his failure to follow instructions was insubordination.

The Division of Employment Security denied Wayne’s claim. An appeals tribunal agreed, accepting an Estes representative’s testimony that Wayne had been dismissed for “poor performance.” The Labor and Industrial Relations Commission affirmed the tribunal in a 2-1 decision, prompting Wayne’s pro se appeal to the Western District.

The 2014 law change eliminated a requirement that rule violations had to be deliberate. As a result, a violation of an employer’s rule is considered to be misconduct unless the employee didn’t know about the requirement.

The results can be harsh. For instance, in 2016 the Western District ruled that a woman was properly denied unemployment benefits after she was fired for admittedly using the word “damn” at work, violating a grocery store’s rule against swearing on the job. The court said the statute made no exception for minor rule violations.

But Judge Gary Witt wrote that Wayne’s case was different. While the rule at issue in the 2016 case and in similar cases “barred particular and well-defined acts,” he wrote, a rule against “poor performance” was much broader.

“Missouri courts have yet to address whether an employer may make a rule against mistakes, accidents, poor workmanship or bad judgment — acts otherwise not disqualifying under [the unemployment benefits statute] — and eliminate a substantial segment of employees who would be otherwise entitled to benefits,” Judge Gary Witt wrote.

Estes’s “poor performance” rule was defined as “failure to perform to acceptable standards.” Witt wrote that the rule “acts as a virtual absolute bar for recovery of benefits in contradiction to the declared purpose of the Missouri Employment Security Law.”

“Such a rule requires perfect performance by Missouri employees or they are subject to total loss of benefits upon termination,” he wrote. Judges Mark D. Pfeiffer and Alok Ahuja concurred.

The company’s original explanation that Wayne was fired for insubordination also fell short, the court said.

“Although Wayne may have been discharged for cause because he performed his job poorly, there was insufficient evidence that his actions rose to the level of insubordination or misconduct, which would support a finding of a denial of benefits,” he said.

Wayne, who lives in Belleville, Illinois, did not list a phone number or email in court records.

The case is Wayne v. Division of Employment Security, WD83132.